Opinion
DOCKET NO. A-0261-13T3
05-08-2015
PETER J. KOWALSKY, Petitioner-Appellant, v. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK, ESSEX COUNTY, Respondent-Respondent.
Eugene G. Liss argued the cause for appellant. Arsen Zartarian argued the cause for respondent State-Operated School District of the City of Newark (The Newark Public Schools Office of the General Counsel, attorney; Mr. Zartarian, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Caroline Jones, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Maven and Carroll. On appeal from the Commissioner of Education, Agency Docket No. 315-10/12. Eugene G. Liss argued the cause for appellant. Arsen Zartarian argued the cause for respondent State-Operated School District of the City of Newark (The Newark Public Schools Office of the General Counsel, attorney; Mr. Zartarian, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Commissioner of Education (Caroline Jones, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Petitioner Peter J. Kowalsky appeals from a final decision of the Commissioner of Education (Commissioner), finding that he had not attained tenure due to an interruption in service because of a workplace injury. Under the unusual circumstances of this case, we disagree that petitioner's medical leave interrupted his period of service to achieve tenure, and reverse.
Petitioner began working as a full-time health and physical education teacher for the State-Operated Newark Public School District (District) on September 1, 2005. On November 28, 2005, petitioner was severely beaten by a student. He suffered fractures to his right hip and femur, disc herniations, and a torn meniscus. Petitioner was not authorized by the District's doctors to return to work for the remainder of the 2005-2006 school year. While on medical leave, the District provided full salary, health insurance, and pension contributions.
Petitioner returned to work in October of the 2006-2007 school year. Although petitioner taught during October and November, he was again placed on medical leave at the direction of the District's doctors. For the remainder of the 2006-2007 school year the District paid him temporary disability payments, maintained his health insurance, and made pension contributions. Petitioner spent the 2007-2008 and 2008-2009 school years in therapy and rehabilitation. He continued to receive temporary disability payments and his health insurance and pension contributions were paid by the District.
On September 1, 2009, petitioner returned to work. He was assigned to University High School's physical education department for the 2009-2010 school year. During the 2010-2011 school year, petitioner was assigned to Barringer High School where he was evaluated as a tenured teacher as noted by the District on his evaluation forms. For the 2011-2012 school year, petitioner was assigned to teach at Central High School and was again evaluated as a tenured teacher. On August 2, 2012, petitioner received notice that his position with the District would be terminated effective August 31, 2012, due to his "non-tenured status coupled with budgetary restraints."
In October 2012, petitioner filed an appeal with the Department of Education (DOE), claiming that he was entitled to tenure protection. The case was sent to the Office of Administrative Law (OAL) for a hearing. Following a period of discovery, the parties filed cross-motions for summary decision. Relying on Kletzkin v. Bd. of Educ., 136 N.J. 275 (1994), and other agency decisions, the administrative law judge (ALJ) found that petitioner had achieved tenure before being terminated effective September 1, 2012.
The ALJ found that a ten-month teaching staff member such as petitioner could acquire tenure after employment by the District after either three consecutive academic years, together with employment at the beginning of the next succeeding academic year, or the equivalent of more than three academic years within a period of any four consecutive academic years. N.J.S.A. 18A:28-5(b) and (c). The ALJ found petitioner's situation to be "rather unique" in that there were long periods where he was unable to perform services for the District because of his work-related disability. The ALJ found petitioner was, however, an "employee" during three years and one day in a four-year period, because pension and other benefit contributions were made continuously on petitioner's behalf by the District from September 2005 until his termination on September 1, 2012, consistent with the treatment of an employee in active service.
The ALJ also found that the District had an extensive opportunity to evaluate petitioner's job performance, and that petitioner's June 12, 2012 evaluation, after thirty months of observation, had resulted in a recommendation for continued employment and a salary increment for the 2012-2013 school year. Accordingly, the ALJ concluded that the petitioner had achieved tenure prior to his termination. The ALJ ordered that petitioner be reinstated to his former position as a health and physical education teacher retroactive to September 1, 2012, together with all salary, benefits, and emoluments, less any monies earned by petitioner during the period of his unlawful termination.
On July 29, 2013, the Commissioner rejected the ALJ's decision, finding that petitioner "failed to satisfy the precise criteria for obtaining tenure pursuant to N.J.S.A. 18A:28-5(c)." The Commissioner reasoned:
The circumstances in this case are distinguishable from those in Kletzkin, persuading the Commissioner that a different result is warranted here. Like Kletzkin, petitioner's medical leaves were necessitated by work-related injuries. However, unlike Kletzkin, petitioner did not perform services during each of the contract years. Indeed, it is undisputed that petitioner provided absolutely no services for the District during the 2007-2008 and 2008-2009 academic years. Such a protracted leave, encompassing entire academic years during which a teaching staff member performs no services for a district, cannot be deemed continuous employment for purposes of tenure acquisition. See Kolodziej v. Board of Education of the Southern Regional High School District, Ocean County, Commissioner Decision No. 179-13, decided May 16, 2013.
Had petitioner performed any services for the District during the 2008-09 academic year, he would have satisfied the thirty months plus one day requirement at the conclusion of the 2011-12 academic year, and thereby achieved tenure. Unfortunately, he did not. The Commissioner is, therefore, constrained to find that petitioner did not
satisfy the statutory criteria for acquisition of tenure.
Petitioner appeals from the Commissioner's decision, arguing:
THE COURT SHOULD REVERSE THE DECISION OF THE COMMISSIONER OF EDUCATION BECAUSE THE COMMISSIONER OF EDUCATION UNREASONABLY AND HARSHLY APPLIED N.J.S.A. 18A:28-15(C) IN DENYING APPELLANT TENURE CONTRARY TO CASE LAW AND THE FACTS.
"[T]he Commissioner of Education has primary jurisdiction to hear and determine all controversies arising under the school laws." Bower v. Bd. of Educ., 149 N.J. 416, 420 (1997). As a result, his "statutory interpretation is entitled to considerable weight, where not inconsistent with the statute and in harmony with the statutory purpose." Kletzkin, supra, 136 N.J. at 278 (internal quotation marks omitted). We will ordinarily uphold the Commissioner's determination unless it is "'arbitrary, capricious, or unreasonable or is not supported by substantial credible evidence in the record as a whole.'" G.D.M. v. Bd. of Educ., 427 N.J. Super. 246, 259 (App. Div. 2012) (quoting Dennery v. Bd. of Educ., 131 N.J. 626, 641 (1993)), certif. denied, 213 N.J. 568 (2013). Nonetheless, we are not bound by an agency's interpretation of a statute. Russo v. Bd. of Trs., 206 N.J. 14, 27 (2011). Instead, we review the interpretation of a statute de novo. N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 301-02 (2011).
As applicable here, the Tenure Act, N.J.S.A. 18A:28-5(a), provides:
This section was amended in 2012 to increase these periods for current employees, but that amendment has no effect on this litigation. See N.J.S.A. 18A:28-5(a), (b) (2012); L. 2012, c. 26, § 9.
The services of all teaching staff members employed prior to the effective date of P.L.2012, c.26 [N.J.S.A. 18A:6-117 to -129] in the position[] of teacher, . . . serving in any school district or under any board of education, . . . shall be under tenure during good behavior and efficiency and they shall not be dismissed or reduced in compensation except for inefficiency, incapacity, or conduct unbecoming such a teaching staff member or other just cause and then only in the manner prescribed by subarticle B of article 2 of chapter 6 of this Title [N.J.S.A. 18A:6-9 to -25], after employment in such district or by such board for:
(1) Three consecutive calendar years, or any shorter period which may be fixed by the employing board for such purpose; or
(2) Three consecutive academic years, together with employment at the beginning of the next succeeding academic year; or
(3) The equivalent of more than three academic years within a period of any four consecutive academic years.
"[B]ecause of its remedial purpose, the Tenure Act should be liberally construed to achieve its beneficent ends." Spiewak v. Bd. of Educ., 90 N.J. 63, 74 (1982). Although "tenure laws are to be liberally construed," we must follow the construction that is "reasonable in light of the plain language of the controlling statutes." Lammers v. Bd. of Educ., 134 N.J. 264, 272 (1993).
The parties agree that petitioner worked as a teacher in the health department during the first few months of his employment, and then following his work-related assault he was on medical leave for approximately four academic years — only returning for a brief period from October to November 2006. Petitioner then worked continuously during the 2009-2010, 2010-2011, and 2011-2012 school years before being terminated. Thus, the question of whether petitioner achieved tenure before his dismissal in 2012 depends on whether he fulfilled the requirements of N.J.S.A. 18A:28-5(a)(2) or (3). Resolution of this issue in turn depends on whether petitioner's paid medical leave from 2006 through 2009, combined with his uninterrupted employment during the succeeding three academic years, constituted either three consecutive academic years, together with employment at the beginning of the next succeeding academic year, or, alternatively, the equivalent of more than three academic years within a period of any four consecutive academic years. The Commissioner concluded that petitioner's leave represented a break in employment, which prevented petitioner from achieving tenure. We disagree.
Our Court has recognized that "'continuous employment' exists notwithstanding the 'mere occasional absence of a teacher by reason of illness or excuse.'" Kletzin, supra, 136 N.J. at 279 (quoting Bd. of Educ. v. Wall, 119 N.J.L. 308, 309-10 (Sup. Ct. 1938)). In Kletzkin, the petitioner worked in the district continuously from January 1986 until November 1988. Id. at 282. Under the circumstances presented,
[t]he Court [in Kletzkin] concluded that [the] teacher, who was on leave due to a work-related injury for four months during the required three-year tenure probation period, still had acquired tenure, even though she did not actively work during the full period. In reaching this decision, the Court noted that there had been ample time to evaluate the employee during the twenty-eight months she had been actively working. [Id. at 280.] Moreover, the Court specifically noted that "an employee on a leave of absence remains an employee." Ibid.; see also Ward v. Keenan, 3 N.J. 298, 310-11 (1949) (noting that a police officer's leave of absence did not constitute a "complete severance of responsibility" and so he could not "lose his tenure during good behavior" while on leave); Blinn v. Bd. of [Trs.], 173 N.J. Super. 277, 278 (App. Div. 1980) (noting that "the phrase 'leave of absence' itself 'connotes a continuity of the employment status'") (citations omitted).
[Kolodziej v. Bd. of Educ., 436 N.J. Super. 546, 551 (App. Div.), certif. denied, 220 N.J. 100 (2014).]
Although the Commissioner distinguished Kletzin on the basis that "petitioner provided absolutely no services for the District during the 2007-2008 and 2008-2009 academic years," we find this distinction inapposite. Here, the Board had three uninterrupted academic years in which to fully evaluate petitioner's fitness for teaching. See Bd. of Educ. v. Raubinger, 78 N.J. Super. 90, 100 (App. Div. 1963) ("Three full years are a sufficient term within which a board of education may judge the competency of a teacher . . . . It is also a reasonable period for one in the teaching profession to be expected to demonstrate his or her capacity before achieving tenure status."). During this thirty-month period, petitioner received two formal observations and an annual evaluation consistent with tenured teacher requirements. And, notably, throughout the 2009-2012 school years, the District, on petitioner's observation and evaluation forms, identified petitioner as having been tenured by checking the appropriate box on each form.
Also, as in Kletzkin, petitioner's medical leaves were necessitated by work-related injuries. Pension, health benefit, and life insurance contributions were made continuously on his behalf by the District from September 2005 until his termination in 2012, consistent with the treatment of an employee in active service. Petitioner did, in fact, return to work in the same position when his allowed leave ended and he resumed his active duties. There is nothing in the record to suggest, therefore, that petitioner's employment relationship with the District ceased while he was on medical leave.
We further note that in his final decision, the Commissioner relied heavily on his earlier decision in Kolodziej, a factually similar case. There, Kolodziej, who was likewise employed as a full-time health and physical education teacher, taught for three consecutive academic years. On the first day of her fourth academic year, Kolodziej began a Board-approved unpaid maternity leave, which lasted through the end of the school year. She then returned to work on the first day of the following academic year and was continuously employed through the end of that school year. Thereafter she received notice that her position with the Board would be terminated, pursuant to a reduction in force plan. See Kolodziej, supra, 436 N.J. Super. at 548.
On appeal, we held that the Commissioner erred in ruling that the teacher's one-year maternity leave represented a break in employment that prevented her from achieving tenure, notwithstanding her three years of continuous employment and tenure evaluations that preceded the leave. Id. at 554. Maternity leave constituted continued employment under N.J.S.A. 18A:28-5(a), entitling petitioner to tenure protection and status under the school district's Reduction In Force plan. Ibid.
In Kolodziej, we held that "interpreting [N.J.S.A. 18A:28-5(a)] to allow tenure in this case fits within the public policy purposes of the Tenure Act and the [Family and Medical Leave Act (FMLA)], under which [the] petitioner took her leave." Id. at 552. We see no reason why the result in the present case should differ where petitioner's leave falls within the purview of the New Jersey Workers' Compensation Act, N.J.S.A. 34:15-1 to -128. Intended to provide benefits to a worker for wages lost as a result of absence from work due to an employment-related injury, the Worker's Compensation Act has analogously been characterized as "remedial social legislation and should be given liberal construction in order that its beneficent purposes may be accomplished." Kahle v. Plochman, Inc., 85 N.J. 539, 547 (1981).
Summarizing, following Kletzkin and Kolodziej, under the rather unique facts of this case we conclude that petitioner was an "employee" of the District for more than three academic years within a period of four consecutive academic years. We further conclude that the District had ample opportunity within the three most recent academic years to evaluate petitioner, did so, and arrived at a favorable conclusion. We therefore reverse the Commissioner's decision, and reinstate the ALJ's determination that the District recognize petitioner's right to tenure and reinstate him retroactive to September 1, 2012, together with the salary, benefits and emoluments owed to him, less monies earned during the period of unlawful termination.
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION